Fitton v Commissioner for Fair Trading, NSW Office of Fair Trading

[2007] NSWADT 72

CITATION:	Fitton v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 72
DIVISION:	General Division
PARTIES:	APPLICANT Anthony Dennis Fitton RESPONDENT Commissioner for Fair Trading, NSW Office of Fair Trading
FILE NUMBER:	063228
HEARING DATES:	3 October 2006
SUBMISSIONS CLOSED:	3 October 2006
DATE OF DECISION:	4 April 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Real Estate agent - licence or certificate of registration - grant
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Property, Stock and Business Agents Act 2002
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Eleter v Director-General, Department of Fair Trading (2002) NSWADT 138 Ex Parte Tzinliolis: Re The Medical Practitioners’ Act [1966] 1 NSWR 357 Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 Parvin v Commissioner for Fair Trading (2005) NSWADT Yelland v Commissioner for Fair Trading (2005) NSWADT Ziems v The Prothonotary of The Supreme Court of New South Wales (1957) 97 CLR 279
REPRESENTATION:	APPLICANT E Conditsis, solicitor RESPONDENT J Coss, solicitor
ORDERS:	The decision of the Commissioner for Fair Trading, NSW Office of Fair Trading to refuse Mr Fitton’s application for a real estate agent's licence under the Property, Stock and Business Agents Act 2002 is set aside. In substitution the decision is made that the application is granted.

REASONS FOR DECISION

Background

1 Mr Fitton applied for the renewal of the Real Estate Agent's licence he held under the Property, Stock and Business Agents Act 2002 (“the Act”) which was due to expire in March 2006. The Office of Fair Trading (“Fair Trading”) did not receive the renewal application until after the licence expiry date and it processed the renewal application as an application for restoration of the licence. A delegate of the Commissioner determined to refuse to grant the application.

2 An internal review determined that Mr Fitton’s application should be refused on the basis that he is not considered to be a fit and proper person to hold a licence under the Act because of his recorded convictions.

3 Mr Fitton has applied to this Tribunal for an external review of the determination.

Relevant legislation

4 Section 3(1) of the Act defines a real estate agent as follows: -

"real estate agent" means a person (whether or not the person carries on any other business) who, for reward (whether monetary or otherwise), carries on business as an auctioneer of land or as an agent:
(a) for a real estate transaction, or

(b) for inducing or attempting to induce or negotiating with a view to inducing any person to enter into, or to make or accept an offer to enter into, a real estate transaction or a contract for a real estate transaction, or

(c) for the introduction, or arranging for the introduction, of a prospective purchaser, lessee or licensee of land to another licensed agent or to the owner, or the agent of the owner, of land, or

(d) collecting rents payable in respect of any lease of land and otherwise providing property management services in respect of the leasing of any land, or

(e) for any other activity in connection with land that is prescribed by the regulations for the purposes of this definition.

but does not include a person who carries on business as an auctioneer or agent in respect of any parcel of rural land unless the regulations otherwise provide.
5 Section 8(1)(a) of the Act provides that a person can not act or carry on the business of a real estate agent, unless the person is the holder of a real estate agent's licence.

6 Section 14(1) of the Act provides:

14 Eligibility for licence or certificate of registration

(1) A natural person is eligible to hold a licence only if the Director-General is satisfied that the person:

(a) is at least 18 years of age, and

(b) is a fit and proper person to hold a licence and each person with whom the person is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and

(c) has the qualifications required for the issue of the licence, and

(d) is not a disqualified person, and

(e) has paid such part of any contribution or levy payable under Part 10 (Compensation Fund) as is due and payable on the granting of the licence.

7 Section 19 of the Act states that an application must not be granted if the applicant is ineligible to be granted a licence.

8 Section 17(2) of the Act states that Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 ("the Uniform Act") applies to and in respect of a licence. Section 12(4) of the applied Act provides that an application for a licence must contain such information as is required by the relevant application form or as is otherwise required by or under the relevant licensing legislation.

9 Section 18 of the Uniform Act states that a licensing authority may grant the application, either unconditionally or subject to such conditions as are authorised or required by the relevant licensing legislation, or refuse the application.

Evidence

10 The Commissioner relies on the material filed in these proceedings pursuant to section 58 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”). In particular The Commissioner relies on Mr Fitton’s criminal history and the Facts Sheet prepared for the criminal prosecution that resulted in his convictions for offences relating to the possession and supply of cocaine.

11 Mr Fitton gave evidence and was subjected to cross-examination. Ms Dawn Fitton, Mr Fitton’s wife, also gave evidence in support of her husband’s application. Mr Fitton also relies on two Psychological Assessment reports provided by Dr. Christopher Lennings, a Clinical Psychologist.

12 Dr Lennings diagnosed Mr Fitton as suffering from a dysthymic disorder that occurs from time to time. It is Dr Lennings’ view that Mr Fitton probably suffered depression since childhood and that it is likely that Mr Fitton fell into the habit of using cocaine because of bouts of depression. Mr Fitton is now taking Zoloft to treat that condition and his wife says that there is an enormous difference in his behaviour since he has been taking Zoloft.

13 Mr Fitton does not rely on any references but provided some material that indicates his involvement in and support for a number of community groups within his local area.

Issues

14 The issue for determination by the Tribunal is whether Mr Fitton is a fit and proper person to hold a licence under the Act.

Findings of fact

15 The facts in this application were not in dispute and can be summarised as follows:

Mr Fitton has held a real estate agent's licence for around 30 years and has an unblemished history in relation to his work as a real estate agent.

Mr Fitton is the sole director of Fitton Investments Pty Ltd, which operates a real estate agency trading as Ray White Avoca Beach. Mr Fitton is the licensee-in-charge of that business.

In March 2005, Mr Fitton was arrested and charged in respect of offences arising out of his use of cocaine. In December 2005, he appeared the Local Court at Woy Woy and was convicted of four offences with the following penalties imposed:

a. Possess Prohibited Drug, cocaine - fined $500 and $65 court costs.

b. Supply Prohibited Drug, cocaine - fined $1,000 and $65 court costs.

c. Supply Prohibited Drug, cocaine - imprisonment (12 months with a non-parole period of 3 months), suspended on condition that Mr Fitton entered into a bond to be of good behaviour for 12 months.

d. Goods in Custody - fined $500 and $65 court costs.

Submissions

16 Mr Coss appeared for the Commissioner and contends that Mr Fitton is operating in a regulated industry for which the Commissioner is the regulator. He argues that the Act is for the protection of the public and in light of the serious nature of the convictions against Mr Fitton and the fact that he remained subject to a good behaviour bond until December 2006, the Tribunal could not be satisfied that Mr Fitton is a fit and proper person to hold a real estate agent's licence.

17 Mr Coss stated that the Commissioner was concerned that insufficient time has passed since the offences for the Tribunal to be satisfied of this fact. He argues that Mr Fitton deals with the public and the public is entitled to have confidence in those with whom it deals. He says that the Tribunal must take into account what the Local Court has decided i.e. a good behaviour bond until December 2006

18 Mr Coss also submitted that there is no evidence of Mr Fitton’s reputation in the community. He says that the Tribunal should place a high value on the conviction and that it is also evidence of Mr Fitton’s association with bad elements of society. Mr Fitton has the burden to show that he is a fit and proper person and Mr Coss argues that he has not provided any evidence that the Tribunal could weigh against that presented against him.

19 Mr Coss argues that reformation of character is exceptional not usual. Mr Fitton’s embarrassment shouldn't stop him from getting references nor should the mere fact that he lives in a closed community stop him from getting references. He said that Mr Fitton has not been honest with his staff in relation to his convictions and the potential consequences for his licence.

20 Mr Coss points to the evidence that Mr Fitton’s use of cocaine was not an isolated act. It was going on for 18 months prior to Mr Fitton being apprehended. He says that there were at least five occasions on which Mr Fitton was involved in crime while he was a licensed real estate agent. It was not until he was apprehended that he changed his ways. There is therefore a question of whether Mr Fitton has sufficient moral rectitude and integrity to carry on that occupation. Mr Coss argues that the Local Court thought not and imposed a good behaviour bond.

21 Mr Coss concedes that Dr Lennings expressed his view on whether Mr Fitton will again use cocaine. However he submitted that Dr Lennings does not regulate the real estate industry whereas the Commissioner is looking to the community and what is needed.

22 Mr Coss submits that subsection 16(2) of the Act refers to the issue of time and that it is useful to refer to other decisions of this Tribunal in which the amount of time that has passed since an offence was committed has been considered in reference to whether a licence should be granted.

23 In Parvin v Commissioner for Fair Trading (2005) NSWADT 34 O'Connor DCJ was of the opinion that 2 years was insufficient time to exercise the discretion under section 16(2) of the Act. In Yelland v Commissioner for Fair Trading (2005) NSWADT 293 I was of the view that the 14 months that had passed since Mr Yelland gave false information to police in order to avoid the consequences of his action was not sufficient to warrant ignoring the offence. In Eleter v Director-General, Department of Fair Trading (2002) NSWADT 138 Lees JM considered that the nearly four and a half years that had passed since Mr Eleter’s offence of receiving stolen property was an insufficient period for the discretion to be exercised in Mr Eleter’s favour.

24 Mr Coss submits that there are no decisions in which a licence was granted to an applicant who was still the subject of a good behaviour bond. He says that this is because the Tribunal could not be satisfied that sufficient time had passed to be confident that the applicant would not re-offend.

25 Mr Conditsis appeared on behalf of Mr Fitton. He points to the evidence of both Mr Fitton and Ms Fitton and submits that their evidence was full and frank and that there can be no issue of the honesty of those witnesses. He also points to the Facts Sheet prepared for the criminal prosecution, which indicates that Mr Fitton was fully cooperative with the police. He says that Mr Fitton did not obtain legal advice and that his participation in an interview is not the modus operandi of a drug dealer.

26 Mr Conditsis submits that there is no established fact of dishonesty such as lying to the authorities. Mr Fitton made full disclosure in his application of March 2006. He held nothing back in his application and did the same again at the hearing. Mr Conditsis further submits that the Tribunal would form the opinion that Ms Fitton is a person of integrity and must make its finding in that light.

27 Mr Conditsis says that this was a one-off period in Mr Fitton's life and that the diagnosis and treatment with Zoloft was a pivotal moment that brought about changes in his lifestyle.

28 Mr Conditsis submits that there is no one in a better position to know about changes in Mr Fitton's behaviour than his wife. He says that Dr Lennings’ opinion fits well with Ms Fitton's evidence and that Zoloft will only have a profound effect if it is needed i.e. if Mr Fitton was suffering from a condition that is remedied by taking Zoloft.

29 Dr Lennings was not required for cross-examination and Mr Conditsis submits that therefore no criticism can be levelled at his opinion on the basis that Mr Fitton paid for the report.

30 The evidence shows that the consequences to Mr Fitton have been devastating. He is embarrassed and ashamed and it has also brought shame on his family. Mr Conditsis submits that the Tribunal should accept that the effect on Mr Fitton's family was devastating. He has been too embarrassed to account for his conduct in order to get testimonials. He is a soul in turmoil and the incident is unlikely to be forgotten and consequently there is a low risk of recidivism. The risk factors that would make it likely that Mr Fitton would re-offend are not present.

31 Mr Conditsis further submits that there is no evidence that Mr Fitton's work is unsatisfactory. He has never attracted the attention of the regulator, which suggests that he managed to perform his work notwithstanding his use of cocaine. He was never under the influence of drugs while at work. It is reasonable to expect that his work performance will only get better and there is no suggestion that the Tribunal should take any extra care with respect to considering the issue.

32 With respect to Mr Fitton’s conviction for supplying cocaine, Mr Conditsis says that the Local Court accepted that it did not involve "supply" in the usual sense of the term. He submits that while there was some gain in that it was cheaper to buy in bulk, there was no profit as such. It was not a matter of greed. The cocaine was divided amongst Mr Fitton’s peers at cost. The same submission was made in the Local Court and there was no suggestion by the prosecutor that it is not correct. He submits that this conduct lies at the bottom end of the seriousness of supply changes and is a technical supply.

33 Mr Conditsis submits that the authorities to which the Commissioner has referred can all be distinguished on their facts. He says that the amount of time that has past since an offence is more relevant to circumstances where honesty is a live issue and where an applicant did not disclose a conviction.

34 He argues that Mr Fitton did not obtain any testimonials because of the closed community in which he operates and the potential damage to his business in revealing his conviction. However, it is two years since Mr Fitton was arrested and there is clear uncontroverted evidence of his changed behaviour. He has the ability to do the job, he is honest and the risk to the community would be low He says that there is nothing that would cause the public to not have confidence in him. No reasonably informed member of the community would object to him having the licence.

Reasons and Decision

35 The expression “fit and proper” has been considered in a number of cases, the leading one being Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127. In that case the characteristics of fitness and propriety were said to be knowledge, honesty and ability.

36 This Tribunal has frequently cited the decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 as a guide to the meaning of “a fit and proper person”. In that case Toohey and Gaudron JJ stated (at page 380):

“The expression “a fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However depending upon the nature of the activities the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of likely future conduct) or reputation (because it provides indication of public perceptions as to likely future conduct) may be sufficient to grant a finding that a person is not fit and proper to undertake activities in question.”
37 Their Honours further stated at page 388:
“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for valuation by the decision maker. So too is the weight, if any to be given to matters favouring the person whose fitness and propriety are under consideration.”
38 The fact of a conviction in itself will not ordinarily be enough for the Tribunal to be satisfied that a person is not a fit and proper person to be issued with a licence to undertake a particular work activity. In the High Court case Ziems v The Prothonotary of The Supreme Court of New South Wales (1957) 97 CLR 279 Taylor J made the following comment, at 302:
"I find it impossible to assent to the proposition that proof of the fact of the Appellant’s conviction and sentence, without more, made it inevitable that an Order should be made directing that his name be removed from the Roll of Barristers. The vital question in my opinion, in such cases, is not whether a Practitioner has been convicted of an offence against Criminal Law, but whether his conduct has been such as to show that he is unfit to remain a member of his profession".
39 It has been acknowledged that the mere passage of time since the wrong act is not sufficient to indicate a change of character. In Ex Parte Tzinliolis: Re The Medical Practitioners’ Act [1966] 1 NSWR 357 the Court of Appeal considered an application for registration by a medical practitioner. In determining that the Applicant was not a fit and proper person, the court said:
Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standard of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man.
40 The principle in determining whether a person is a "fit and proper person" to be issued a licence for a particular activity is that past improper conduct of the applicant must be considered in light of the activity which is to be licensed and not considered at large.

41 The Commissioner’s concerns in respect to the serious nature of Mr Fitton’s convictions are understandable. However, in determining whether Mr Fitton is a "fit and proper" person to be issued a real estate agent's licence, proper regard must be had to the circumstances of these convictions and what has since transpired.

42 The question to be asked is whether the circumstances of Mr Fitton’s convictions are such that he is not fit to discharge the responsibilities relating to the work that would be authorised on the issue of that licence. I have not had the benefit of evidence of individuals who have knowledge of Mr Fitton and who are in a position to comment on his reputation. I note that Mr Fitton explains the absence of testimonials in terms of the closed community in which he operates. While this is view understandable it means that inferences must be drawn from the evidence of Mr Fitton’s community activities. In the circumstances I am prepared to draw the inference that Mr Fitton is probably of good repute.

43 There is no evidence to contradict the evidence given by Mr Fitton and Ms Fitton and I accept that evidence as showing that Mr Fitton’s reformation of character and behaviour. After considering that evidence along with the reports of Dr Lennings, I have formed the opinion that this is one of the exceptions referred to in In Ex Parte Tzinliolis: Re The Medical Practitioners’ Act.

44 The evidence establishes that Mr Fitton has an unblemished work history as a real estate agent and the circumstances of his convictions were related to his then undiagnosed condition and had no bearing on that work. This does not detract from the seriousness of Mr Fitton’s conduct but does not of itself prohibit him from working in an area for which he is qualified and experienced. Mr Fitton did not in any way conceal the fact of his convictions or the seriousness of them. He disclosed this on his application to the Commissioner.

45 Having regard to all the relevant circumstances, it is my opinion that the Commissioner’s decision is not the correct and preferred decision. Accordingly it should be set aside. In its place the decision should be made that the application be granted.

DECISION

46 The decision of the Commissioner for Fair Trading, NSW Office of Fair Trading to refuse Mr Fitton’s application for a real estate agent's licence under the Property, Stock and Business Agents Act 2002 is set aside. In substitution the decision is made that the application is granted.